As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
There seems to be curious anomalies in the manner in which many South Africans (and the law) view the mistreatment of animals. The arrest of Pastor Penuel Mnguni for animal cruelty over the weekend for feeding his congregation live snakes illustrates this point.
Most South Africans have no qualms with having certain domesticated animals – such as sheep, chickens, pigs and cows – killed in abattoirs (often in the cruellest manner) before cooking and eating parts of these animals at home. (Curiously having sex with these animals – seemingly far less cruel than killing and eating these animals without their consent – remain both a societal taboo and a criminal offence.)
But for some reason most South Africans are not keen to kill and eat other domesticated animals such as dogs, cats and snakes, drawing a distinction without a difference (probably based on habit and cultural practice). Moreover, society increasingly also frowns on the hunting of certain animals (lions, elephants, giraffes), but not others (antelope).
These anomalies are reflected in the manner in which legislation deals with the mistreatment of animals in South Africa. There are several problems with the Animals Protection Act, which was passed by the apartheid regime in 1962 and remains on the statute books.
First, the Act reflects the world view, values and practices of a small segment of society and thus fails to accommodate the cultural practices and attitudes of many black South Africans towards the treatment of different types of animals in different situations.
Moreover, section 8 of the Act grants members of the SPCA wide powers to investigate animal cruelty, and even (without a warrant) to arrest persons reasonably suspected of such cruelty.
It is unclear to what extent the staff of the SPCA are always aware of the cultural diversity of South Africa and to what extent some of them might harbour internalised racial prejudices, which may affect the manner in which they respond to allegations of animal cruelty by different people, depending on the race of the accused person.
Second, the Act criminalises the mistreatment of “animals”, but defines “animals” in a peculiar way to mean:
any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal, wild bird or reptile which is in captivity or under the control of any person.
This means the Act prohibits the mistreatment of all domestic animals, but only the mistreatment of wild animals if such wild animals are in captivity or under the control of a person. Mistreating a lion held in a zoo will thus fall under the Act, but mistreating the same lion roaming the Kruger Park will not. Similarly, punching a shark held in an aquarium may therefore be a criminal offence, but punching the same shark in the open sea will not.
Third, section 2 of the Act criminalises a range of activities relating to these animals, but the criminalised activities are described in imprecise and vague terms, making it difficult to determine what types of treatment of animals will constitute a criminal offence and what will not.
It is thus a criminal offence to “overload, overdrive, override, ill-treat, neglect, infuriate, torture or maim or cruelly beat, kick, goad or terrify any animal”. It is also a criminal offence to “confine, chain, tether or secure any animal unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather”.
Goading or infuriating a snake kept as a pet or under your control is therefore a criminal offence. But what does this mean? What type of treatment of the said snake will “infuriate” that snake? Would the mere act of imprisoning the snake in a glass cage not infuriate that snake? Would milking a cow every morning and every evening “infuriate” or “goad” it? The Act does not say. However, I would imagine eating a live snake may well be viewed as an act of infuriating said snake.
The Act also prohibits anyone from “unnecessarily” starving or under-feeding and animal or from denying water or food to an animal. This provision is curious as it is unclear how a court will determine whether it was indeed “necessary” to starve or underfeed an animal. Will it ever be necessary to starve an animal to death, for example and if so why?
The section also prohibits anyone from poisoning an animal “without reasonable cause”. Similar, questions arise as to how a court will determine when it will be reasonable to poison an animal and when not. How will the state prove that it was not reasonable for the person to have poisoned an animal?
Lastly, it seems as if the Act may well apply to a wide range of activities associated with the commercial exploitation of animals – including the entire process through which parts of animals end up in plastic packets in fridges at Pick and Pay and Woolworths. Yet, food producers who raise animals to be slaughtered and sold to the public to serve its dietary needs are seldom if ever targeted for alleged animal cruelty, suggesting there is a bias in the manner in which the Act is being enforced.
Although I have been able to find two reported cases in which action was taken against a farmer for mistreating animals being raised for the market on a commercial farm, I have not been able to find any case dealing with legal action taken against chicken producers for the manner they treat battery chickens. Nor have I found any case taking on the manner in which animals are treated at an abattoir.
A quick search of the internet reveals that almost all chickens raised for their meat are, like other factory farmed animals, raised in less than ideal conditions. While the SPCA has from time to time expressed dismay at the manner in which chickens on some commercial chicken farms are treated, to my knowledge no commercial chicken farmer has ever been prosecuted under the Animals Protection Act for the mistreatment of chickens.
Now, it may well be that a majority of South Africans have no problem with the mistreatment of animals by food producers and slaughterhouses. After all, many of us will later cook and eat those mistreated animals, so it might be hypocritical to insist on their humane treatment during their short lives – only to eat them after they are killed and cooked.
As a society we may choose to hold a sentimental view of some of the animals we are not culturally programmed to eat (cats, dogs and the like) and we may choose to protect only such animals from the cruelty inflicted on them by humans. We may have no qualms with poisoning some beasts (rats, mice, mosquitoes, snakes) that we do not like or that we fear will cause a nuisance. while being horrified by the poisoning of our pets or other “loveable” animals.
However, I would suggest that it would be helpful to have an honest debate about the issue. If we have to justify why we wish to have some animals protected from cruelty and others not, it might force us to rethink our attitude towards animals. In any case, whether such a debate occurs or not, it seems to me the time has come to review the outdated legislation dealing with animal cruelty in South Africa.BACK TO TOP